4. SAME-SEX MARRIED COUPLES
4.2. The Derived Right of Same-Sex Spouses of EU Citizens to Enter, Reside, and Work in Another EU Member State
4.2.1. The 2018 Coman & Hamilton judgment of the Court of Justice of the EU
When Directive 2004/38/EC on free movement of EU citizens and their family members was adopted (29 April 2004), only two of the then 15 EU Member States (the Netherlands and Belgium) permitted same-sex couples to marry. The European Parliament and the Council decided not to define the term
‘spouse’ in Article 2(2)(a) of the Directive, either by expressly including or expressly excluding a spouse of the same sex as the EU citizen. Some of those involved in the legislative process might have assumed that the CJEU would not depart from its ruling in 2001 in D. & Sweden v. Council (when only the Netherlands permitted same-sex couples to marry): ‘34. ... [A]ccording to the definition generally accepted by the Member States, the term “marriage” means a union between two persons of the opposite sex. ... ‘80
But legislation in EU Member States changed dramatically between 2001 and 2018, when the CJEU delivered its judgment in Coman & Hamilton v. Inspectoratul General pentru Imigrări.81 (By June 2018, same-sex couples had, or were about to have, access to marriage in 14 of the then 28 Member States: Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Malta, the Netherlands, Portugal, Spain, Sweden, and the United Kingdom (except for Northern Ireland). They had access to some form of registered partnership in a further 8 Member States: Croatia, Cyprus, Czechia, Estonia, Greece, Hungary, Italy, and Slovenia. They had no access to marriage or registered partnership in 6 Member States: Bulgaria, Latvia, Lithuania, Poland, Romania, and Slovakia.)82 The case concerned Adrian Coman, a male citizen of Romania who had worked in Belgium (at the European Parliament). While he was working there, he married Clabourn Hamilton, a male citizen of the USA,83 which was possible under Belgian law in 2010. After Mr. Hamilton was refused a Romanian residence permit (for more than three months), the Constitutional Court of Romania referred four questions to the CJEU, of which the CJEU answered two:84
‘(1) Does the term “spouse” in Article 2(2)(a) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter [of Fundamental Rights of the EU], include the same-sex spouse, from a State which is not a Member State of the[EU], of a citizen of the [EU] to whom that citizen is lawfully married in accordance with the law of a Member State other than the host Member State?
(2) If the answer is in the affirmative, do Articles 3(1) and 7([2]) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter, require the host Member State to grant
80 Joined Cases C-122/99 P and C-125/99 P ECLI:EU:C:2001:304 (31 May 2001).
81 Case C‑673/16 ECLI:EU:C:2018:385 (5 June 2018).
82 Opinion of Advocate General Wathelet in Coman & Hamilton ECLI:EU:C:2018:2 (11 January 2018), para. 58, n. 37.
83 In Case C-127/08, Metock v. Minister for Justice, Equality and Law Reform, ECLI:EU:C:2008:449 (25 July 2008) established that a valid marriage to an EU citizen is sufficient to rely on Directive 2004/38. The spouse does not have to demonstrate lawful residence in another Member State prior to the marriage.
84 The following discussion is taken from Robert Wintemute, ‘Universal Humanity vs. National Citizenship: The Example of Same-Sex Partner Immigration in Europe’, in Richard Mole (ed.), Queer Migration and Asylum in Europe (University College London Press, 2021).
the right of residence in its territory for a period of longer than three months to the same-sex spouse of a citizen of the [EU]?’
The CJEU began its analysis by holding that Mr. Coman and Mr. Hamilton could not rely on Directive 2004/38/EC, which provides in Article 3(1) that it applies to ‘Union citizens who move to or reside in a Member State other than that of which they are a national’. They could rely on the Directive if they were seeking a residence permit for Mr. Hamilton in Bulgaria, Poland or any other Member State, but not in Romania (the Member State of which Mr. Coman is a national).85
Even though the Directive did not apply, they could rely on Article 21(1) TFEU (‘Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States ...’), under conditions no stricter than those in Directive 2004/38, which must be applied by analogy: ‘during the period of his genuine residence in Belgium [as a worker] pursuant to Article 7(1) of Directive 2004/38, Mr Coman created or strengthened a family life with Mr Hamilton’.86 Mr. Coman’s Article 21(1) TFEU rights ‘include the right to lead a normal family life, together with [his] family members, both in the host Member State [Belgium] and in the Member State of which [he is a] national[] when [he] return[s]
to that Member State [Romania]’.87 (For over twenty-five years, since 1992, the CJEU had recognised the right of an EU citizen returning to their own Member State, after exercising their freedom of movement in another Member State, to rely on EU law in relation to their family members.88)
Does Mr. Hamilton qualify as a ‘family member’ of Mr. Coman, ie, his ‘spouse’, under Article 2(2)(a) of Directive 2004/38? The CJEU finally answered the question left open when the EU legislature chose not to define ‘spouse’ in 2004: ‘As to whether ... [“spouse”] includes a third-country national of the same sex as the Union citizen ..., it should be pointed out ... that the term “spouse” within the meaning of Directive 2004/38 is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned.’89
Under the current text of Article 2(2)(b) of Directive 2004/38 (and current case law), Romania would not be obliged to recognise a same-sex registered partnership from another EU member state, because Romania has no such law ‘treat[ing] registered partnerships as equivalent to marriage’. But the absence of a reference to ‘the legislation of the host Member State’ in Article 2(2)(a) means that Romania ‘cannot rely on its national law as justification for refusing to recognise ..., for the sole purpose of granting a ...
right of residence to a third-country national, a marriage concluded by that national with a Union citizen of the same sex in another Member State in accordance with the law of that state’.90 This is true
85 Coman & Hamilton, above n. 2, paras. 19-21.
86 Ibid, paras. 24-26.
87 Coman & Hamilton, above n. 2, para. 32.
88 Case C-370/90, The Queen v. Immigration Appeal Tribunal and Surinder Singh ECLI:EU:C:1992:296 (7 July 1992):
‘19. A national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed … in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under … [EU law] in the territory of another Member State. 20. He would in particular be deterred from so doing if his spouse and children were not also permitted to enter and reside in the territory of his Member State of origin under conditions at least equivalent to those granted them by [Union] law in the territory of another Member State.’
89 Coman & Hamilton, above n. 2, para. 35.
90 Ibid, para. 36.
even though Romania, exercising its competence over family law, is ‘free to decide whether or not to allow marriage for persons of the same sex’ in Romania.91
EU law intervenes because the effect of refusing to recognise a same-sex marriage from another member state is that ‘a Union citizen may be denied the possibility of returning to the Member State of which he is a national together with his spouse’.92 The recognition required by Article 21(1) TFEU
‘does not undermine the institution of marriage’ in Romania, because it is ‘for the sole purpose of enabling persons [of the same sex] to exercise the rights they enjoy under EU law’.93 This obligation
‘does not undermine the national identity or pose a threat to the public policy of the Member State concerned’.94
What is striking about Coman & Hamilton is that the CJEU was determined to base its judgment on liberty (the right of an EU citizen to freedom of movement), rather than on equality (the right of an EU citizen to be free from discrimination based on sexual orientation). Even though Romania recognises opposite-sex marriages from other Member States, the word ‘discrimination’ does not appear in the CJEU’s reasoning. It appears only in references to Recital 31 of Directive 2004/38, and to the proceedings in the Romanian courts. Article 21 of the Charter (‘Any discrimination based on any ground such as ... sexual orientation shall be prohibited.’) is not cited, even though it was cited by the Constitutional Court of Romania in its first two questions, and should influence the interpretation of the term ‘spouse’ in Directive 2004/38.
The CJEU was also careful not to cite two relevant judgments of the ECtHR: Taddeucci & McCall v.
Italy (30 June 2016), probably because it found sexual orientation discrimination in Italian immigration law (a male citizen of Italy living in Italy, whose partner was a male citizen of New Zealand, and who could not rely on EU law because there had been no movement between EU member states, had to be granted some means of applying for a family-member residence permit for his partner); and Oliari & Others v. Italy (21 July 2015) (Italy may exclude same-sex couples from marriage but must create ‘a specific legal framework’ for them which can have a name other than marriage), to avoid appearing to suggest that Romania is also obliged under Article 8 (respect for family life) of the EConHR to introduce ‘a specific legal framework’ for same-sex couples. The obligation in Oliari & Others to create a ‘specific legal framework’ applies equally to same-sex couples who have married in another country under Orlandi & Others.95
Advocate General Wathelet’s Opinion (11 January 2018), which considered both free movement and human rights, and therefore cited Article 21 of the Charter, sought to avoid sexual orientation discrimination: ‘A definition of the term “spouse” that was limited to heterosexual marriage would inevitably give rise to situations involving discrimination on grounds of sexual orientation.’96 He concluded that ‘refusal to grant the application for ... residence of a third-country national, of the same
91 Coman & Hamilton, above n. 2, para. 37.
92 Ibid, para. 40.
93 Coman & Hamilton, above n. 2, para. 45.
94 Ibid, para. 46.
95 Orlandi & Others v. Italy (ECtHR, 14 December 2017) (the ‘specific legal framework’ must also be extended to same-sex couples who have married outside of Italy, in lieu of recognising their marriages as marriages). See also four cases pending against Poland in the ECtHR concerning refusals to recognise the Danish or UK marriages of two women (Handzlik-Rosuł & Rosuł, No. 45301/19; Formela & Formela, No. 58828/12), or to facilitate the marriages in Spain of two men (Szypuła, No. 78030/14; Urbanik & Alonso Rodríguez, No. 23669/16).
96 Coman & Hamilton, above n. 2, paras. 5, 75.
sex as the citizen of the [EU] to whom he or she is married ..., may not be ... based on his or her sexual orientation, without infringing Articles 7 [respect for family life] and 21 [non-discrimination] of the Charter’.97 He cited Taddeucci & McCall seven times, and Oliari & Others five times.
Coman & Hamilton is a landmark judgment because, for the first time, the CJEU has included same-sex couples in the concepts of ‘spouse’ and ‘marriage’. But it is important to recognise the judgment’s limits. It requires Romania to recognise a same-sex marriage from another member state
‘for the sole purpose of granting a derived right of residence to a third-country national’. The CJEU used the phrase ‘for the sole purpose’ four times.98 The CJEU does not yet require Romania to recognise a same-sex married couple for any other purpose of Romanian law (for instance in relation to family, tax, social security, pensions, inheritance, citizenship/nationality, and medical law, e.g.
hospital visitation and consultation).
Nor does Coman & Hamilton help the majority of Romanian same-sex couples who are in ‘internal situations’ (see chapter 3, footnote 35): they have yet to exercise their EU law right to reside in another Member State (such as Belgium), have stayed in Romania, and have not been able to marry (because Romania does not yet allow same-sex couples to marry). Such couples may rely on Taddeucci & McCall, who were also in an ‘internal situation’ to which EU law did not apply, but to which the EConHR did apply.
As for their having access neither to marriage nor to registered partnership, same-sex couples have taken cases to the ECtHR, seeking to extend Oliari & Others, Orlandi & Others, and the requirement of ‘a specific legal framework’ to Romania and Poland.99
4.2.2. Compliance with Coman & Hamilton in Romania
One would expect that the first Member State to comply with Coman & Hamilton would be Romania.
On the contrary, as of 28 February 2021, more than two years after the CJEU’s 5 June 2018 judgment, and the 18 July 2018 judgment of the Constitutional Court of Romania (applying Coman & Hamilton), Mr. Hamilton had yet to receive his Romanian residence permit. No Romanian court has ordered a member of the executive or the administration to issue the permit to him, and no member of the executive or the administration has invited him to complete any necessary formalities prior to the issuance of his residence permit. The Inspectoratul General pentru Imigrări, which has not changed its policy, continues to deny residence permits to the same-sex spouses of EU citizens (and returning nationals). This is a shocking failure of a Member State to comply with EU law, which would justify enforcement action by the European Commission under Article 258 TFEU. In the absence of such action, Mr. Coman and Mr. Hamilton have taken their case to the ECtHR (Application no. 2663/21 against Romania, lodged on 23 December 2020, communicated on 9 February 2021).
97 Ibid, para. 98.
98 Coman & Hamilton, above n. 2, paras. 36, 40, 45, 46 (emphasis added).
99 Buhuceanu & Ciobotaru v. Romania, No. 20081/19, http://hudoc.echr.coe.int/eng?i=001-200952; Przybyszewska v. Poland, No. 11454/17, http://hudoc.echr.coe.int/eng?i=001-203744.
4.2.3. Compliance with Coman & Hamilton in other EU Member States
As mentioned above (footnote 3 of this chapter), the now 27 Member States can be divided into three groups (for citations to the legislation, see Annex 3):
(1) six with neither marriage nor registered partnership for same-sex couples: Bulgaria, Latvia, Lithuania, Poland, Romania, and Slovakia;
(2) eight with registered partnership but not marriage for same-sex couples: Croatia, Cyprus, Czechia, Estonia, Greece, Hungary, Italy, and Slovenia; and
(3) thirteen with marriage for same-sex couples: Austria, Belgium, Denmark, Finland, France, Germany, Ireland, Luxembourg, Malta, Netherlands, Portugal, Spain, and Sweden.
The Member States in the first group are those where there is reason for particular concern about compliance with Coman & Hamilton. Romania has been mentioned above (4.2.2). Replies from the other five Member States to the questionnaire sent by the ECPRD to national parliaments on 15 June 2020 revealed the following:
- Bulgaria – on 24 July 2019, ‘with a final decision in case № 11558/2018, the [Supreme Administrative Court] confirmed the right of a same-sex couple (married in another EU Member State) to reside on the territory of the Republic of Bulgaria’
- Latvia – the 29 October 2018 Opinion of the Ombudsman of the Republic of Latvia does not mention Coman & Hamilton or freedom of movement under EU law, but does cite Oliari & Others: ‘The Ombudsman … [recommends]: [1] to fulfil the positive obligation of the state to provide a legal framework for the recognition of different family models in accordance with the latest ECHR findings and Article 110 of the [Constitution] …’
- Lithuania – the Constitutional Court of Lithuania ruled on 11 January 2019,100 that ‘a temporary residence permit for an alien who is not a citizen of [an EU] Member State may be issued in case of family reunification … when a family member of the same sex family resides in the Republic of Lithuania and their marriage or a registered partnership is lawfully concluded in the other state’
- Poland – ‘[i]n principle, same-sex spouses have access to residency rights as guaranteed by EU law’
- Romania – ‘Article 277 of the Civil Code, paragraphs (2) and (4) - Declared partially unconstitutional on 18th of July 2018 by the Constitutional Court of Romania [in the judgment that applied Coman &
Hamilton] which … found that [these paragraphs] … are constitutional as far as they allow the granting of the right of residence on Romanian territory … to spouses – citizens of Member States of the European Union and/or citizens of third countries – from same – sex marriages concluded or contracted in a Member State of the European Union’
- Slovakia – ‘According to Article 2 par. 5 letter h) of the Act on the Residence of Foreigners, if the third-country national has the right of residence in the Member State in which his partner (a Slovak national) with whom he has a [emphasis added] permanent, duly attested relationship has the right of residence,
100 See https://www.lrkt.lt/lt/teismo-aktai/paieska/135/ta1898/content.
the third-country national may exercise the right of a family member of a EU citizen if he accompanies his partner (Slovak national) or joins him in the territory of the Slovak Republic. … Third country national has family member of EU citizen status according to the Article 2 par. 5 letter g) of the Act on the Residence of Foreigners as he has durable, duly attested relationship with EU citizen. …’
All six Member States appear to be willing, in theory, to comply with Coman & Hamiton by granting a residence permit to the same-sex spouse of an EU citizen (or a returning national). This is an assumption in the case of Latvia (the reply is silent on this question). What is not clear in any of these Member States is whether or not the residence permit would state that the spouse is the ‘spouse’,
‘registered partner’, or ‘partner in a durable relationship’ of the EU citizen (or returning national).
In the other twenty-one Member States (even though no replies were received for four Member States:
Denmark, Belgium, Luxembourg, Malta), the authors have no reason to believe that a residence permit would be denied to the same-sex spouse of an EU citizen (or a returning national), except in the cases of Greece and Cyprus. The Hellenic Parliament replied to the questionnaire as follows:
‘1) When a same-sex married couple moves to your country, does your country recognise their marriage:
(a) for free movement purposes (family reunification), by automatically granting entry and residence also to the third-country national spouse of the EU citizen exercising free movement rights, as required by the 2018 Coman & Hamilton judgment of the CJEU? … No.’
A subsequent answer states that ‘their marriage is assimilated to a civil partnership’ (‘common life pact’
is a more accurate translation of the terms in the Greek language, used in both Greece and Cyprus), but gives no detail as to how that would lead to the issuance of a residence permit to the same-sex spouse of an EU citizen (or a returning national). Similarly, the Cypriot Parliament replied: ‘No, between same-sex persons only registered partnerships are recognized. Cypriot legislation does not recognize marriage between persons of the same sex.’
Among the eight Member States that offer registered partnership but not marriage to same-sex couples, the only Member States that appear to recognise a same-sex marriage from another Member State as a marriage are Estonia and Croatia. The reply of the Estonian Parliament states: ‘If the same-sex marriage contracted in abroad is valid according to the Estonian law, then the same-sex couple has the same rights and obligations as heterosexual married couples in Estonia.’ The reply of the Croatian Parliament states: ‘a … marriage between persons of the same sex who are citizens of a member state of the European Economic Area, or those in which one of the persons has citizenship of a state outside the European Economic Area, concluded and registered pursuant to the regulations of the member state in which that relationship was concluded, shall enjoy equal possibilities of access to the rights and privileges included in the scope of the guarantee of fundamental freedom of movement within the European Economic Area to marital relationships concluded in the Republic of Croatia’.